Control of Ohio Supreme Court at stake in 2020

Posted Dec 21, 2019

By Thomas Suddes, cleveland.com

Next year’s main event in Ohio politics will be the re-election, or defeat, of President Donald Trump, and of the 16 Ohioans now in the U.S. House of Representatives. Voters will also fill all 99 seats in the Ohio House of Representatives and half the state Senate’s 33 seats.

But in terms of Ohioans’ daily lives, next year’s critical contests may be over two Ohio Supreme Court seats, an election that could flip a 5-2 Republican court to 4-3 Democratic.As to Trump, the outcome in Ohio will hinge on (a), the Democratic challenger, (b) the economy, and (c) whether Washington’s war hawks land us in the soup again.

All Ohio U.S. House incumbents are probably as good as re-elected because of GOP-rigged congressional districts. (There’s a remote chance U.S. Rep. Steve Chabot, a Cincinnati Republican, could weaken his chances unless he remembers that silence is golden. “We are witnessing, I believe, the most tragic mockery of justice in the history of this nation,” Chabot said last week of the House’s hearings on impeaching Trump. In an interview with the Cincinnati Enquirer, Chabot later conceded that he had made an overstatement. No kidding.)

Seeking re-election to the Supreme Court next year are Republican Justices Judith L. French, of suburban Columbus, a Mahoning County native, and Sharon L. Kennedy, of suburban Hamilton. Justice French’s challenger will be Democrat Jennifer Brunner, once Ohio’s secretary of state, now a judge of the Columbus-based Ohio Court of Appeals (10th District).

Cuyahoga County Common Pleas Judge John O’Donnell, a Greater Cleveland Democrat, will challenge Justice Kennedy. O’Donnell ran unsuccessfully for the high court in 2014 and 2016. (In 2016’s contest, he lost by a razor-thin 22,000-vote statewide margin to Cincinnati Republican Patrick F. Fischer.

Democrats and unions made the Supreme Court a priority in the ‘70s and ‘80s. Result: Ohioans gave the high court a Democratic majority from 1976 through 1986. But in 1986, Thomas J. Moyer, a now deceased Columbus Republican, unseated Frank D. Celebrezze, a now deceased Greater Cleveland Democrat, as chief justice. Ever since, the court has had a Republican majority: So, for nearly 34 years, the high court hasn’t given public utilities defending rate increases, and employers fighting workers’ compensation claims, much to gripe about.

Good example: The state Supreme Court’s refusal to order consumer refunds when the justices overturned a utility rate the Public Utilities Commission of Ohio had OK’d. Then-Justice Paul E. Pfeifer, a Bucyrus Republican, wrote in a 2014 dissent that it was “unconscionable” for the court’s majority to let American Electric Power Co. keep $368 million in customers’ money even though the court was overturning the PUCO decision that had originally OK’d those charges.

Reason: A legal doctrine Ohio’s Supreme Court follows that says consumers aren’t entitled to refunds of an overturned rate if the PUCO had followed proper procedures in approving it. It’s called the rule against retroactive ratemaking: Heads, an Ohio utility wins, tails, the consumer loses.

Rep. Mark Romanchuk, a Mansfield Republican, introduced House Bill 247 during the 2017-18 session to instead require consumer refunds in such cases. Ohio’s utility-friendly House didn’t pass it.

Another example: Since late October, the Supreme Court has been ducking formal legal questions referred to it by U.S. District Judge Edmund A. Sargus, of Columbus, about Ohio’s challenged signature deadlines for letting Ohioans place issues on the statewide ballot.

What’s in play is a petition drive by foes of House Bill 6, signed July 23 by Republican Gov. Mike DeWine, to require Ohio electricity consumers to subsidize the Perry and Davis-Besse nuclear power plants, and two coal-fired power plants, one in Indiana. The nuclear plants were built by what’s now Akron-based FirstEnergy Corp. But the plants’ owner is FirstEnergy Solutions (soon to be renamed Energy Harbor), a FirstEnergy Corp. spin-off. The coal-fired plants belong to Ohio Valley Electric Corp., a group of Ohio, Kentucky and Indiana electric utilities.

By ignoring Sargus’s questions, the Ohio Supreme Court is, in effect, killing any chance that Ohioans could vote House Bill 6 up or down in November. The court’s silence on HB 6 leaves the possible ballot issue in limbo – exactly where Ohio’s electric companies think it belongs.

Thomas Suddes, a member of the editorial board, writes from Athens.

To reach Thomas Suddes: tsuddes@cleveland.com, 216-408-9474